A Common Prayer: Religious Sensibilities and the Sentencing of Pussy Riot

by Robyn Curnow

[Robyn Curnow is a graduate of the University of Melbourne and the University of Queensland. She works as a lawyer in Melbourne.]

Reactions to the prosecution and sentencing of three members of Pussy Riot in August this year have revealed sharp disparities in the ways different countries’ legal systems protect peoples’ religious sensibilities. What they have also exposed is a spectrum of tolerance across national jurisdictions for criminal laws designed to preserve public order.

Granted, the level of unrest triggered by Pussy Riot has been relatively contained to date: vandalism of various sites in Moscow and a wave of civil litigation against Pussy Riot, including a claim by a Novosibirsk woman seeking damages for “deep moral suffering” after viewing footage of the performance by the group in the Christ the Saviour Cathedral (several thousand kilometres away in Moscow). And it is certainly worth questioning whether the performance itself would have gained as much exposure as it did in Western media had the official reaction been a fine or warning instead of a criminal prosecution. Pyotr Verzilov, the husband of one of the defendants, provided a partial answer to this question when he told RIA Novosti on 22 August: “…the Pussy Riot story and the court case is very easy to understand for the West. Pussy Riot is basically a machine placed inside the media.”

Indeed, while many commentators have questioned the severity of the sentence imposed by the Khamovniki District Court on 17 August, few have grappled with the offence as it was characterised by the prosecution or analysed the evidence presented to support it. The reason for this is understandable: not only is the footage of the offending conduct barely comprehensible, but the particulars of the charge are not accessible to the mainstream English speaking media. So, because (or perhaps in spite) of the fact that few legal commentators know how the prosecution case was put, the most interesting questions have not yet been asked.

One person started asking before the sentence was passed. In her article “The Pussy Riot Act” (The St Petersburg Times on 8 August 2012), Michele A. Berdy provided a translation of the indictment for non-Russian speakers, as well as some useful observations about the act of “desecration”: “…it was the worst of the pre-revolutionary Russian religious crimes and carried the death penalty for centuries.” Berdy also translated the particulars: “hooliganism, that is, a gross violation of public order expressing a clear disrespect for society, committed on the grounds of religious hatred or enmity or hate against a particular social group by a group of persons by prior agreement.”

This means that the charge was framed contrary to article 213.2 of the Criminal Code of the Russian Federation. The offence provision, which appears in Section IX, entitled ‘Crimes Against Public Security and Public Order’, may be translated as follows:

a gross violation of the public order expressing a clear disrespect for society

with the use of weapons or articles used as weapons

motivated by political, ideological, racial, national or religious hatred or enmity, or for motives of hatred or enmity in relation to a particular social group.

Prior to its amendment in 2003, the offence provision required the conduct to be “accompanied by violence against citizens or the threat thereof, or the destruction or threat of destruction of property of another” (Law and Legal System of the Russian Federation, 2009, p 586). The current version of the law, however, appears to characterise the second and third elements as alternatives.

Nevertheless, the absence of weapons, or articles used as weapons, by the defendants in this case appears to bring their conduct within the category of “petty hooliganism” or “Disorderly Conduct” under Article 20.1 of the Code of Administrative Offences of the Russian Federation. This alternative was canvassed by Vladimir Lukin, Russia’s Human Rights Commissioner (RIA Novosti, 23 August 2012) when he described the actions of the defendants as a “serious misdemeanour”, rather than a crime. Article 20.1 provides for the imposition of a fine or an administrative arrest for a period up to 15 days for “violation of public order in the form of open disrespect of the public accompanied by foul language in public places, abusive pestering of people or destruction or damage caused to other people’s property.”

It is possible that the “serious misdemeanour” alternative was considered by the parties in this case, but ultimately the indictment alleged an aggravated form of hooliganism, contrary to article 213.2 of the Criminal Code because – according to the translation of the indictment by Berdy – it was “committed by a group of persons in by prior agreement.” This increased the maximum penalty to 7 years imprisonment. To date, the most notorious breach of a similar provision was the illegal landing, in 1987, of a Cessna 172 in Red Square by 19 year old German national Mathias Rust, for which he was sentenced to four years’ imprisonment.

Berdy has also reviewed documents, described as witness testimony, which tell how the conduct was “unbefitting, and in fact violated all imaginable and unimaginable, commonly accepted rules of behaviour in a church. They put on clothing that clearly and obviously contradicted church rules. Then they started to satanically jerk around, jump, run, kick their legs up, twirl their heads while they shouted very insulting, blasphemous words.” According to Berdy’s translation, this led to a “violation of the feelings and faith of many Orthodox Christians and a defilement of the spiritual basis of the state.”

The statements by the Pussy Riot members in their defence focussed on two points: first, their lack of intention to cause harm, in the form of subjective feelings of hurt and insult among the worshippers present in the cathedral, and second that their motivations were political rather than religious. According to one of the statements read out by the defendants’ lawyers during the proceedings, the object of the protest was the support of the Orthodox Church’s Patriarch Kirill for President Putin (as opposed to the church itself).

In other words, the defendants were not motivated by religious hatred, but rather “a desire to persuade church leaders not to meddle in politics.” With this statement, the defendants blended the religious and political so thoroughly that the distinction between them all but disappeared – which seems to be exactly the point they say they were trying to make.

By contrast, the prosecution stressed the religious significance of the performance: “They set themselves off against the Orthodox world and sought to devalue traditions and dogmas that have been formed for centuries,” stated prosecutor, Alexander Nikiforov.

Meanwhile, Larisa Pavolova, a lawyer for the witnesses to the performance, who – as victims – were entitled to be separately represented, was more blunt: “This is not a question of our parliamentary or presidential elections, but a criminal case about … banal hooliganism with a religious motive.”

One way of looking at the Pussy Riot case is that it was indeed a modern show trial, to the extent that it was colonised by the defendants themselves, and used as a vehicle to mobilise sympathy and credibility for their cause. In this sense, the quaint terminology of “hooliganism” may have actually assisted in this process by appealing to English-speakers’ sense of nostalgia and invoking images of unruly football fans, rather than dangerous subversives posing a serious threat to public safety (especially considering that, for many people, football and religion are on a similar level). So, the very law designed to protect religious sensibilities and preserve public order instead created an opportunity for Pussy Riot to reverse the roles of victims and perpetrators, and gain access to the mainstream media. The confrontational nature of hooliganism, amplified by its key ingredient nakhal’stvo, or “cheek”, is what originally made it such a powerful phenomenon in the early twentieth century, when the offence provision appeared. Hooliganism, Joan Neuberger suggested in her comprehensive study of this period, “is the tactic of people without more powerful weapons at their disposal.” Political and social change might be “processes set in motion by a variety of forces, but hooliganism dramatised them, advertised them, and eventually came to symbolise them.” (Hooliganism, 1993, p277) The biggest threat to Pussy Riot over the next few months may not be the judicial system, or law enforcement, but rather the public’s waning appetite for details of appeal hearings and executive pardons. Another obstacle might be the over-exposed images of the defendants themselves – a possible consequence of the ‘show trial’ spectacle. Ultimately, a quote by veteran Russian opposition activist Eduard Limonov (himself found to have published articles inciting racial enmity by the Russian Information Disputes Chamber in 1996) seems to describe the Pussy Riot “machine” most succinctly: “This is a clash of archaism and modernism and it cuts through all political layers.” (The St. Petersburg Times, 22 August 2012).

One Response

Unfortunately, the author misses a couple crucial legal points by misreading the prosecutors’ charges and the provisions of Art. 213.2. While the trial had many errors, the bulk of them are attributable to the judge, not the prosecutors.
Despite the author’s assertions the prosecutors did not frame the charges “contrary to article 213.2.” In fact, the text of the translated charges the author cites is a verbatim statement of several sentences of Art. 213.2. More noteworthy is the fact that the author omits a crucial semicolon. Whereas the use of weapons may constitute one of the grounds for hooliganism, their presence or use is not a necessary condition for the crime’s commission. Instead a violation may be committed:

with the use of weapons or articles used as weapons; (OR)
(when) motivated by political, ideological, racial, national or religous hatrted or enmity ….

This is key since the particular since the guilty verdict was based on 1) commitment of an act offensive to the public and 2) motivated by religious hatred. The weapons were not a necessary component.
What most Russian jurists, including Mikhail Barshevsky (the equivalent of Russia’s solicitor general) have disputed, was the judge Syrova’s imputation of religious hatred onto the Pussy Riots’ members. The band and its attorneys have persistently asserted that their performance was a statement about Russian Orthodox Church’s close ties to Putin, not an act of religious animosity.

-Aleksey Babics

9.23.2012
at 5:21 pm EST Aleksey Babics

Trackbacks and Pingbacks

There are no trackbacks or pingbacks associated with this post at this time.

May 14, 2018ANZAC Day and Post Conflict Reconciliation[Chris Jenks is an associate professor of law and directs the criminal justice clinic at the SMU Dedman School of Law in the US.]
On April 25th, I had the privilege of attending an ANZAC Day dawn service at Kranji War Memorial Cemetery in Singapo...